Strasbourg, 28 September 2007

Dear Mr J.,

On 3 February 2006, you submitted a complaint to the European Ombudsman concerning the European Commission's alleged failure to provide satisfactory answers to the questions contained in your e-mail of 3 October 2005. By e-mails of 9 and 20 February 2006, you supplemented your complaint with additional information.

On 10 March 2006, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 1 June 2006. I forwarded it to you with an invitation to make observations, which you sent on 17 December 2006.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

In his complaint (and related documents attached to it), the complainant made the following submissions. On 3 October 2005, the complainant addressed an e-mail to Commissioner Markos Kyprianou, which contained a series of specific questions relating to the potential benefits of genetically modified ("GM") foods for EU consumers. On 3 November 2005, in the absence of any reply, the complainant made a formal complaint to the Commissioner. On 10 November 2005, the Commission sent a holding reply, and sent its substantive reply on 16 December 2005. Since the complainant was not satisfied with the Commission's reply, on 21 January 2006, he sent a final request to the Commissioner for replies to his questions. He also indicated that he would submit a complaint to the European Ombudsman if he did not receive a reply by 30 January 2006. In the absence of such a reply, the complainant submitted the present complaint to the Ombudsman on 3 February 2006.

In his complaint, the complainant alleged that the Commission failed to provide satisfactory answers to the following questions contained in his e-mail of 3 October 2005: (1) "Will you please tell us how your recent GM authorizations, bringing GM material into animal feed and other food products, will bring benefits to consumers?"; (2) "How will they enhance food safety?"; (3) "How will they enhance the quality, taste and nutritional character of food?"; (4) "How will they enhance public health?"; (5) "How will they hold food prices down?"; (6) "How will they help to create a 'healthy living environment'?"; (7) "How will they improve animal welfare?"; (8) "And how do you consider that the rights of consumers will have been enhanced by the cavalier dismissal of all public opinion polls on GM matters by the Commission?"; and (9) "What evidence do you have in support of the proposition that some EU consumers actually want to purchase and consume GM food?"

The complainant claimed that Commissioner Kyprianou should apologise and be formally reprimanded for failing to provide answers to his questions. On 9 February 2006, the complainant sent a further e-mail to the Ombudsman informing him that, on 8 February 2006, he received a reply from the Commission. In his e-mail to the Ombudsman, he further alleged that, in its reply of 8 February 2006, the Commission had responded in an arrogant manner and therefore claimed that the Commissioner should resign.

On 10 March 2006, the Ombudsman opened an inquiry into the complainant's complaint and asked the Commission to express its opinion on the following allegation and claim:

The complainant alleges that the European Commission failed to provide him with satisfactory answers to the questions concerning genetically modified ("GM") products that he put forward in his e-mail of 3 October 2005.

The complainant claims that Commissioner Kyprianou should apologise and should be formally reprimanded for his refusal to provide answers to the complainant's questions.

However, the Ombudsman informed the complainant that there were insufficient grounds to open an inquiry into his further allegation and claim, as presented in his e-mail of 9 February 2006, because the complainant had not clarified in what way he considered that the content of the Commission's reply of 8 February 2006 was arrogant.

By e-mail dated 27 April 2006, the complainant requested that the Ombudsman reconsider his decision not to pursue further his allegation that the Commission had replied in an arrogant manner in its reply of 8 February 2006, and his claim that Commissioner Kyprianou should therefore resign.

In his reply of 17 July 2006, the Ombudsman explained to the complainant that, in view of the further explanations provided by the Commission in its opinion of 1 June 2006 on the present complaint, he considered it appropriate to await the complainant's observations on the Commission's opinion before deciding whether to extend his inquiries as regards the issues mentioned in his e-mail of 27 April 2006.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission first recalled the background of the case by explaining that, on 3 October 2005, the complainant sent an e-mail to Commissioner Kyprianou, which contained a series of questions related to the recent authorisation of genetically modified organisms ("GMOs"). On 10 November 2005, a holding reply was sent to the complainant, which was followed, on 16 December 2005, by a substantive reply. In the meantime, on 3 November 2005, the complainant made a formal complaint to the Commissioner about its delay in sending a reply. By e-mail of 21 January 2006 to the Commissioner, the complainant indicated that he was not satisfied with the Commission's replies to his questions, and that, in the absence of an appropriate answer by 30 January 2006, he would submit a formal complaint to the Ombudsman. On 8 February 2006, the Commission provided a reply to the complainant's e-mail of 21 January 2006. However, the complainant had, in the meantime, submitted a complaint to the Ombudsman. Relatedly, in a further e-mail of 9 February 2006 to the Ombudsman, the complainant indicated that he had considered the Commission's reply to be inappropriate and arrogant.

On the substance of the complainant, the Commission first underlined that it attaches the utmost importance to clarifying to citizens and stakeholders the different aspects of its actions. In this respect, an important number of questions, sometimes touching upon complex and interrelated issues is dealt with each day by its different services. In dealing with such questions, the Commission tries to be as timely and exhaustive as possible.

As regards the complainant's questions contained in his e-mail of 3 October 2005, the Commission considered that they were related to the general context of the procedure for authorising genetically modified ("GM") food and feed to be put on the market. In this respect, the Commission had, in its comprehensive reply of 16 December 2005, provided all the necessary information regarding the political background, the EU legislative framework in this sector, as well as the reasons for the present Commission policy with respect to GM products. Hence, the Commission considered that it had provided all the information explaining its actions. Furthermore, it had clearly explained to the complainant that, in its actions related to the authorisation of GMO, the Commission was merely applying EU legislation that had recently been approved by the European Parliament and the Council.

In order to illustrate these considerations, the Commission provided a detailed review of the questions to which the complainant wished to receive an answer, as well as its replies to these questions, as provided in its initial reply of 16 December 2005.

Question 1 ( "Will you please tell us how your recent GM authorizations, bringing GM material into animal feed and other food products, will bring benefits to consumers?") was related to consumer benefits generally. This was a broad question which may be related to the quality of the food/feed as well as to other factors such as consumers' economic interests.

Questions 2 ("How will they enhance food safety?"); 3 ("How will they enhance the quality, taste and nutritional character of food?"); 4 ("How will they enhance public health?"); and 7 ("How will they improve animal welfare?") were related to a potential enhancement of food safety or animal welfare following the authorisation of GMOs. As it was clear from the answer provided on 16 December 2005, the potential enhancement of food safety was not considered, at that time, for inclusion in the criteria for authorising GMOs. This was, for example, dealt with in the following extract of the document attached to its reply:

"The Commission should also, as required by the Community legislation, endorse: - the continuous submission of draft decisions for the placing on the market of new GMO products, on a case by case basis, to the Regulatory committees if there are no risk[s] for human health and to the environment based on scientific evaluation [...]".

Question 5 ("How will they hold food prices down?") concerned the effect of the authorisations of GM food on the price of food. As this was the result of various and market-dependent factors, it was difficult to answer this question even in the hypothesis of reduced production costs for GM food.

Question 8 ("And how do you consider that the rights of consumers will have been enhanced by the cavalier dismissal of all public opinion polls on GM matters by the Commission?") was related to the right of consumers to choose between GM and non-GM products, which had been specifically dealt with in the following part of the Commission's reply:

"This Regulation defines the procedures and the requirements to authorise the placing on the market of this type of product. I would like to stress that this does not impose the products to be placed on the market and, a fortiori, consumer to buy them [sic]. In this regard, the Regulation does also set out labelling rules in order to inform the consumers on the GM origin of the products and therefore providing them the right to choose between GM and non GM products. Considering, for example, a recent report of Greenpeace ("No market for GM labelled food in Europe", January 2005), I am convinced that the current labelling rules of GM food do effectively allow consumers who do not want to buy this type of products [not] to do so."

Question 9 ("What evidence do you have in support of the proposition that some EU consumers actually want to purchase and consume GM food?") had also been dealt with in the Commission's comprehensive reply.

The Commission concluded its opinion by stating that, by letter of 16 December 2005, it had given a satisfactory reply to the complainant's e-mail of 3 October 2005, and had provided him with all the necessary information regarding the authorisation of GMOs. It had therefore taken the view that it would be neither necessary nor appropriate to reprimand Commissioner Kyprianou. The Commission therefore asked the Ombudsman to close the case.

The complainant's observations

In his observations, the complainant maintained his complaint and made, in summary, the following submissions. He first recalled that he received a holding reply on 10 November 2005 to his letter of 3 October 2005, and then a substantive reply on 16 December 2005. The complainant was of the opinion that the Commission's substantive reply was a "typical civil service letter", which failed to address any of the questions that he had asked. He had therefore complained about this failure to the Commission by letter of 21 January 2006, in which he had also repeated his questions "in case the Commissioner or his staff had failed to understand them [the] first time". He then received a reply from the Commission on 8 February 2006, which, however, again failed to answer his questions, while the institution maintained that all the answers had been contained in its earlier communications.

The complainant found that this was a profoundly unsatisfactory state of affairs and he therefore wished to maintain his complaint. He further submitted that his questions were specific and simple, and were addressed to Commissioner Kyprianou on the grounds that the Commissioners must be held accountable for the policies that they seek to promote. The Commissioner should have therefore answered his questions directly, instead of "retreating behind civil servants and prepared statements" that only addressed broad policy issues.

The complainant reiterated his request that a severe reprimand be issued to Commissioner Kyprianou for failing to answer his questions.

THE DECISION

1 The Commission's alleged failure to provide satisfactory answers to the questions contained in the complainant's e-mail of 3 October 2005

1.1 The complainant alleged that the Commission had failed to provide satisfactory answers to the questions contained in his e-mail of 3 October 2005, as they were repeated and supplemented in his e-mail of 21 January 2006. These questions were the following: (1) "Will you please tell us how your recent GM authorizations, bringing GM material into animal feed and other food products, will bring benefits to consumers?"; (2) "How will they enhance food safety?"; (3) "How will they enhance the quality, taste and nutritional character of food?"; (4) "How will they enhance public health?"; (5) "How will they hold food prices down?"; (6) "How will they help to create a 'healthy living environment'?"; (7) "How will they improve animal welfare?"; (8) "And how do you consider that the rights of consumers will have been enhanced by the cavalier dismissal of all public opinion polls on GM matters by the Commission?"; and (9) "What evidence do you have in support of the proposition that some EU consumers actually want to purchase and consume GM food?" These questions were accompanied by several comments which expressed the complainant's opposition to three specific GMO authorisations.

1.2 In its opinion, the Commission stated that all of the complainant's questions related to the general context of the procedure for authorising genetically modified ("GM") food and feed to be put on the market. In its comprehensive reply of 16 December 2005, the Commission provided the complainant with all the necessary information regarding the political background, the EU legislative framework, as well as its policy on GMOs. In the same reply of 16 December 2005, the Commission clearly explained to the complainant that, in its actions concerning the matter at issue, it was merely applying the relevant EU legislation in relation to the authorisation of GMO that had recently been approved by the European Parliament and the Council. In its opinion, the Commission also made more specific comments about how, in its reply of 16 December 2005, it had addressed each one of the complainant's nine questions.

1.3 In his observations, the complainant maintained his complaint and submitted that his questions were specific and simple, and were put to Commissioner Markos Kyprianou on the grounds that Commissioners must be held accountable for the policies that they seek to promote. The Commissioner should have therefore answered his questions directly, instead of "retreating behind civil servants and prepared statements" that only addressed broad policy issues.

1.4 The Ombudsman first notes that principles of good administration, reflected in point 4 of the Commission's Code of Good Administrative Behaviour(1) required that the Commission adequately address the questions contained in the complainant's e-mail of 3 October 2005.

1.5 Second, the Ombudsman remarks that, on 16 December 2005, the complainant received from the Commission the following reply to his e-mail of 3 October 2005:

"As you are certainly aware, in recent years the EU has carried out a comprehensive review of its regulatory framework on GMOs with a view to ensuring a high level of health and environmental protection and guaranteeing consumers' right to choose. The authorisation for the placing on the market of genetically modified food and feed is regulated in the EU by Regulation (EC) N°1829/2003. This Regulation defines the procedures and the requirements to authorise the placing on the market of this type of product. I would like to stress that this does not require that GM products be placed on the market []or [that] consumers (...) buy them. In this regard, the Regulation does also set out labelling rules in order to inform the consumers on the GM origin of the products and therefore providing them the right to choose between GM and non GM products. Considering, for example, a recent report of Greenpeace ("No market for GM labelled food in Europe", January 2005), I am convinced that the current labelling rules of GM food do effectively allow consumers who do not want to buy this type of products to exercise that choice. Regulation (EC) N°1829/2003 (and therefore all these aspects) has been adopted relatively recently (September 2003), after an extensive consultation of all involved stakeholders by the Commission, by the Council as well as by the European Parliament. Both these institutions agreed to empower the Commission to proceed with the authorisation of GMOs in a regulatory procedure. When authorising GMOs, the Commission is thus merely implementing this environmental and consumer focused legal framework. These present benefits of biotechnology in the pharmaceutical sector are not subject to any controversy. In the same way, biotechnology may also bring benefits either for the production of food or feed or to enhance the final quality of these products. This being said, it is true that the authorisation of GMOs remains a controversial matter. This issue was the object of an orientation debate by the whole European Commission on the 22 nd of March last. I refer you to the document 'Communication to the Commission for an orientation debate on Genetically Modified Organisms' in annex that was produced on this occasion. I am convinced that this document will provide you all the necessary information regarding the political background, the EU legislation for the placing on the market of GMOs, as well the reasons for the present Commission policy with respect to GMOs."

The Commission attached to its reply the Communication to the Commission for an orientation on Genetically Modified Organisms ("the Communication"). This seven-page document contained, in particular, information on the political background concerning GMOs, the EU legislation for the placing on the market of GMOs, pending approval procedures, and action it expected to take in respect of the applicable EU legislation. This action included, inter alia,

"the continued submission of draft decisions for the placing on the market of new GMO products, on a case-by-case basis, to the Regulatory Committees if there are no risks to human health and to the environment based on scientific evaluation."

By e-mail of 21 January 2006 to the Commission, the complainant stated that the reply he had received did not answer his questions. He repeated them and requested a response within a few days. By letter of 8 February 2006, the Commission replied that all these questions were related to the general context of the procedure for authorising GM food and feed to be put on the market. In the same letter, the Commission also explained that its letter of 16 December 2005 provided all the necessary information regarding the political background, the EU legislation for the placing on the marker of GMOs, as well as the reasons for the Commission's policy at the time with respect to GMOs.

1.6 The Ombudsman notes that the complainant's e-mails containing his questions also (i) included an expression of his opposition to certain GMO authorisations, and (ii) concerned, at least in great part, the benefits of these authorisations to consumers, food safety, quality, taste and nutritional value of food, public health, and animal welfare. The Commission replied on 16 December 2005, in rather general terms, by referring to Regulation (EC) N° 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed(2) (Regulation 1829/2003), which sets out the procedures and requirements for authorisations and labelling rules, and to the Communication. It noted, inter alia, that its GMO authorisations were carried out in accordance with Regulation 1829/2003, which had been adopted by the Council and Parliament after an extensive consultation of all involved stakeholders. Nevertheless, the Commission's reply (including the Communication attached to it) did not address, in a sufficiently specific and adequate way, the complainant's questions (1)-(7), which concerned three specific GMO authorisations and their effects in certain fields. The Commission rather gave general information about (rules and procedures for) GMO authorisations, without explaining why it did not provide the information requested by the complainant(3). Hence, it appears that the Commission failed to comply with the requirement mentioned in point 1.4 above, in relation to questions (1)-(7).

1.7 The Ombudsman next has to examine whether the foregoing shortcoming was remedied in the context of the present inquiry.

Question 1

In its opinion, the Commission noted that question (1) was related to consumer benefits generally and that this was a broad question that may be related to the quality of food and feed, as well as to other factors such as consumers' economic interests. The Ombudsman considers that, prima facie, this part of the Commission's opinion, which points to the breadth of question (1), adequately addresses this question. He also notes that, in his observations, the complainant did not contest, in a specific way, the adequacy of this reply.

Questions (2), (3), (4), (6) and ( 7)

In its opinion, the Commission remarked that questions (2), (3), (4) and (7) were related to a potential enhancement of food safety or animal welfare following the authorisation of GMOs and that the potential enhancement of food safety was not taken into account when authorising GMOs. These remarks clearly indicate that the Commission could not provide the information requested in the above questions, as well as in question (6), which referred to similar matters, because such information was not considered for the authorisation of GMOs. The Ombudsman finds that, prima facie, this part of the Commission's opinion adequately addresses the foregoing questions. He also notes that, in his observations, the complainant did not contest, in a specific way, the adequacy of this reply.

Question (5)

In its opinion, the Commission noted that (i) question (5) concerned the effect of the authorisations of GM foods on the price of food, and (ii) as this was the result of various and market-dependent factors, it was difficult to answer this question even on the hypothesis of reduced production costs for GM food. The Ombudsman finds that, prima facie, this part of the Commission's opinion adequately addresses the foregoing question. He also remarks that, in his observations, the complainant did not contest, in a specific way, the adequacy of this reply.

In light of the above, the Ombudsman concludes that the instance of maladministration found in point 1.6 above appears to have been eliminated in the context of his present inquiry. The Ombudsman concludes that it is not, thus, justified to pursue the matter further.

1.8 As regards questions (8) and (9), the Commission recalled in its opinion the following portion of its reply to the complainant:

"Question 8 is referring to the 'cavalier dismissal of all public opinion on GM matters'. The right of consumers to choose between GM and non GM products has been specifically treated in the answer: 'This Regulation defines the procedures and the requirements to authorise the placing on the market of this type of product. I would like to stress that this does not impose the products to be placed on the market and, a fortiori, consumer to buy them [sic]. In this regard, the Regulation does also set out labelling rules in order to inform the consumers on the GM origin of the products and therefore providing them the right to choose between GM and non GM products. Considering, for example, a recent report of Greenpeace ("No market for GM labelled food in Europe", January 2005), I am convinced that the current labelling rules of GM food do effectively allow consumers who do not want to buy this type of products [not] to do so.' As regards question 9 and the request of [sic] possible evidence that consumers want to purchase GM products, these aspects have also been treated in the comprehensive response."

The Ombudsman finds that, at least prima facie, this part of the Commission's reply adequately addressed the foregoing questions. He also remarks that the complainant has not contested, in a specific way, the adequacy of this reply. The Ombudsman, thus, concludes, that the complainant's allegation has not been substantiated, with regard to questions (8) and (9). Hence, the Ombudsman finds no corresponding instance of maladministration on the part of the Commission.

1.9 Finally, in relation to the complainant's e-mail of 27 April 2006, by which he requested that the Ombudsman reconsider his decision not to pursue further his allegation that the Commission had replied in an arrogant manner in its reply of 8 February 2006, and his claim that Commissioner Kyprianou should therefore resign, the Ombudsman wishes to state the following. The Ombudsman, in his reply of 17 July 2006 to the complainant, noted that the Commission, in its opinion on the present complaint, provided further explanations as regards the content of its e-mail of 8 February 2006 and that he therefore considered it appropriate to wait for the complainant's observations before reconsidering the complainant's above allegation and claim.

The Ombudsman further notes that, in its reply of 8 February 2006, the Commission wrote: "Thank you for your e-mail of 21 January 2006. Commissioner Kyprianou asked me to reply on his behalf. In this e-mail, you list questions that were raised in your previous e-mails (dated 3 October and 3 November 2005) that are all related to the general context of proceeding to the authorisation of placing on the market GM food and feed. The answer that was sent to you on 16 December 2005 is providing all the necessary information regarding the political background, the EU legislation for the placing on the market of GMOs, as well as the reasons for the present Commission policy with respect to GMOs." In this regard, it is recalled that in his letter of 10 March 2006, the Ombudsman informed the complainant that he found insufficient grounds to open an inquiry into the above allegation and claim because "the complainant has not clarified in what way he finds the content of the Commission's reply of 8 February 2006 to be arrogant." The Ombudsman finds that despite the fact that the complainant's attention had been specifically drawn to the fact that he should clarify in what way he found the Commission's reply to be arrogant, he does not seem to have done so. Moreover, the Ombudsman remarks that the content of the above letter does not appear to be arrogant.

In view of the above, the Ombudsman considers that it would not be justified to extend his inquiry into the complainant's allegation concerning the arrogant tone of the Commission's reply of 8 February 2006, and, consequently, to extend his inquiry into the relevant claim that the responsible Commissioner should resign.

2 The claim that Commissioner Kyprianou should apologise and be formally reprimanded

2.1 In his complaint, the complainant claimed that Commissioner Kyprianou should apologise and should be formally reprimanded for his refusal to provide answers to the complainant's questions.

2.2 In view of his findings in points 1.7 and 1.8, the Ombudsman takes the view that there are no grounds for further inquiries as regards this aspect of the complaint.

3 Conclusion

The instance of maladministration found in point 1.6 above appears to have eliminated in the context of the present inquiry. The Ombudsman, therefore, closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Annex to Commission Decision of 17 October 2000 amending its Rules of Procedure, OJ 2000 L 267, p. 63.

(2) OJ 2003 L 268, p. 1.

(3) In its opinion, the Commission argued that it was clear from its reply that the potential enhancement of food safety was not considered at that time for the authorisation of GMOs. In support of this argument, the Commission referred to the following part of the Communication:

"The Commission should also, as required by the Community legislation, endorse: - the continuous submission of draft decisions for the placing on the market of new GMO products, on a case by case basis, to the Regulatory committees if there are no risk for human health and to the environment based on scientific evaluation (...)".

In this regard, the Ombudsman notes that, in its opinion, the Commission did not specifically refer to the foregoing part of the seven-page Communication, which it attached to its reply. Thus, the Ombudsman is of the view that the Commission's above reply cannot reasonably be deemed to be a clear indication to the complainant that it could not provide the relevant information requested, on the ground that such information was not considered for the authorisation of GMOs.